Delivered
by the Hon. Mr. Justice B.K. Molai on the 26th day of June, 1984.

The
accused is charged with the crime of murder on the following
allegations :

"in that upon or about the 17th April, 1983 and at or near
Thabana Tsooana in the district of Mafeteng the said accused did
unlawfully and intentionally kill one Moselantja Mots'ets'e."

At the
commencement of the trial, Mr. Nthethe who represented the accused in
this matter informed the Court that the defence admitted
the
deposition of Dr. Van Lugt who was PW.12 at the proceedings of the
Preparatory Examination. The admission was accepted by Mrs,
Bosiu,
counsel for the Crown. In terms of the provisions of s. 273 of the
Criminal Procedure and Evidence Act. 1981, the deposition
of Dr. Van
Lugt was accordingly admitted in evidence and it became unnecessary,
therefore, to call him as a witness.

Briefly
the evidence heard by the court was that on the morning of Sunday,
the 17th April, 1983, PW.1, 'Malebohang Ntela, was sitting
with the
deceased in the latter's house. There was a time when PW.1 went out
to pass water. While she was outside the house, PW.1
noticed the
accused coming towards the deceased's house. He was carrying a
blanket on his shoulder and a

2

After she
had passed water, PW.1 returned into the house. At that time the
deceased who was rinsing her mouth was about to go out
when the
accused placed his blanket and stick on the stoep outside and entered
into the house. As he entered into the house, the
accused remarked :
"We are only three in the house, I want to kill you so that your
husbands can remain without wives."
He kicked the deceased's
baby, Tebesi, who was crawling on the door way saying: "This is
not a person." The accused then
clapped the deceased and stabbed
her with a knife in the middle of the chest. The deceased leaned
against a table next to which
she had been standing. The accused
stabbed her for the second time below her left armpit and she dropped
to the floor. The knife
with which the accused stabbed the deceased
was lightish in colour and was not one of the two knives handed as
Exhibits in this
case.

When she
saw the deceased thus stabbed and dropping to the floor, PW.1 ran out
of the house screaming. The accused chased her for
some distance
before giving it up. She ran to PW.5, 'Malerato Mots'ets'e, who was
at a nearby field and tearfully reported what
had happened.

Accused's
version was slightly different. According to him on the evening^of
Saturday the 16th April, 1983. he had been assaulted
by PW.1's
husband, one Mokhoro Ntela, and others. On the following morning,
Sunday the 17th April, 1983, he went to the headman
(PW.7) to obtain
a letter with which to go to the police and report the assault on him
by Mokhoro and others. He armed himself
with a stick and a, knife
with which to protect himself if his assailants tried to ambush and
attack him on the way.

While the
accused was at the headman's place, the deceased's husband (PW.6)came
in the company of Mokhoro and another. They demanded
that the
headman, should, get him (accused) out of his yard. When the headman
did not comply, they went away. The accused then
took the letter and
left for Sephapo police post.

On the
way to Sephapo police post, accused had to pass next to deceased's
house when he heard the deceased who

3

was
standing outside the house calling out that he (accused) was going to
report to the police. The deceased's husband and Mokhoro
then got out
of the house and the latter was about to rush at him (accused) when
his wife, caught hold of him and told him not
to go and fight the
accused on the road. The deceased's husband then warned the accused
to run as fast as he could.

After he
had passed the deceased's house on his way to the police post, the
accused noticed that the deceased's husband, Mokhoro
and another were
following him. He ran to the next village and took refuge at the
house of one Mathibela. The deceased's husband
and his party came to
Mathibela's house and pretended to be looking for beer. When they
were told that there was no beer, the deceased's
husband offered him
50c which the accused, however, declined. They then left Mathibela's
place and took the direction towards Sephapho
police post at Taung.
For fear of being ambushed and attacked by the deceased's husband and
his companions on the way to the police
post, the accused decided to
return home.

When he
approached the deceased's place on his way back home, the accused
noticed the deceased still standing outside her house.
He went to her
and asked why she was inciting her husband and others to assault him.
The deceased's reply was that they had fixed
him alright and in fact
she thought they had already finished with him. As she said those
words, the deceased attacked him with
a pair of shearing scissors
which she had been holding in her hand. The accused warded off the
blow with his hand but the deceased
managed to stab him in the palm
before she retreated. When he saw blood coming from his palm, the
accused got confused and in his
confusion took out the knife from his
pocket, went to the deceased and stabbed her twice. The knife with
which he stabbed the deceased
was a "best" pocket knife. At
the time he and the deceased started fighting, PW.1 ran away and she
could not have seen
him stabbing the deceased. The accused denied
that after stabbing the deceased, he chased PW.1.

4

After he
had stabbed her, accused noticed that the deceased was bleeding. He
got frightened by the sight of blood from the deceased
and fled. He
went to the headman's place and reported to his wife as the headman
himself was not in. He then went to the chief,
one Chieftainess
'Maborata or 'Majoalane Sefali, who is senior to the headman. The
Chieftainess wrote him a letter with which to
report himself to the
police at Mafeteng. However, according to the accused, the
chieftainess did not write the letter. She merely
put her date stamp
on the letter written by PW.7, lehola Hlalele (headman).

On his
way to the police, accused felt frightened and threw the knife he had
used to stab the deceased with into the water. As he
entered Mafeteng
township, he had a thought that the police might ask him to produce
the knife with which he had stabbed the deceased.
He met a certain
Buti Mosheshe from whom he borrowed the knife, Exh.3. He later
thought Exh.3 was too big. He went via the house
of PW.8, 'Mamorena
Lints'a, and asked her to keep Exh.3 for him. He told her he was
going to the shops and would come for it later
on, PW.8 agreed and
told him to place Exh.3 on the table. As he placed it on the table,
accused noticed a smaller knife, Exh.2.
He secretly took it and left.
PW.8 confirmed accused's story and told the court that after the
accused had left, she wanted to
use Exh,2 to prepare some vegetables
but could no longer find it on the table. She later identified it at
the police charge office.

According
to the accused, when he left PW,8's place, he went to the police
station, reported what he had done to the deceased and
handed in Exh.
2. After making the report, the Mafeteng police told him that they
had just received a phone call from Sephapho
police post where he
should go and report himself. Exh.2 was given back to him.

The
accused then left but instead of going to Sephapho police post went
straight home. On his arrival at home, he met PW.7 who told
him to go
and put up for the

5

night at
his (PW.7's) home. He did. On the following day a messenger, one
Khubelu Matekane, was detailed to escort him to Sephapho
police post
where he was tortured and told to produce the knife with which he had
stabbed the deceased as Exh.2 was not the one.
He eventually told the
police at Sephapho's about Exh.3. He was then taken to Mafeteng
police station from where he took PW.10,
D/Tpr. Hlaele, to PW.8's
home. He told PW.8 to produce Exh.3 and she did. This was confirmed
by both PW.8 and PW.10.

According
to PW.10, the accused was on 19th April, 1983 handed to him at
Mafeteng by a certain Tpr. Lekhooa from Sephapho police
post. He was
carrying an "okapi" knife about which he made a certain
explanation. Following that explanation, the accused
took him to the
home of PW.8 whom she told to produce the knife he had left with her
on the previous day. PW.8 complied. It was
a "sable" knife.
PW.10 took possession of the two knives i.e. the "okapi and the
"sable" knives which
were handed in as Exhibits 2 and 3
respectively. According to PW.10, the accused never reported any
injuries to him. The accused,
however told the court that he was
later sent to prison and to the medical officer for treatment.

The
evidence of PW.7 was slightly different. According to him, after
Chieftainess 'Maborata had instructed the accused to go and
report
himself at Mafeteng police station, he noticed him arriving in the
village at about 5 p.m. on the same day. When he asked
what the
police had said, the accused told him that they had released him.
PW.7 became suspicious and ordered the accused to go
with him
straight to his (PW.7's) house. Shortly after, they had come there, a
messenger from Chieftainess 'Maborata arrived with
the instruction
that he (PW.7) should detain the accused to be returned to the police
station under escort on the following morning.

Assuming
accused's story that the deceased stabbed him and he also stabbed her
while they were outside the deceased's house and
they both sustained
bleeding injuries, one would naturally expect to find blood stains

6

on the
forecourt of the deceased's house. As it will soon become apparent,
none of the witnesses who came to the deceased's house
immediately
after she had been stabbed testified that they saw any blood stains
outside the house. The only blood that was seen
at the deceased's
place was inside the house where she was found lying. That, seems to
give support to PW.1's evidence that the
accused attacked the
deceased inside the house in the manner she had described. I am
prepared, therefore, to accept her evidence
as the truth on this
point.

The
evidence of PW.1 that after the accused had stabbed the deceased she
ran to PW.5 was supported by PW.5 herself, who told the
court that
she was the mother of the accused and the deceased was the wife of
accused's younger brother, Molikeng. The eldest of
her sons was Ntai
(DW.2). PW,1's husband, Mokhoro, and his brother Sanki were the
newphes of her sons i.e. the children of her
daughter.

On the
Sunday in question she was in her maize field when PW.1 came to her
crying and reported that the accused had stabbed the
deceased with a
knife. She and PW.1 then immediately proceeded to the deceased's
house.

According
to PW.1's evidence, on their way to the deceased's house, she noticed
the accused walking away in the direction from the
deceased's house.
He was carrying the blanket and the stick that he had placed outside
the deceased's house at the time he entered
into the house. As he
walked away, the accused called at PW.5 and said "Hey you, Your
mother's anus you are, go and take that
victim (phofu) of yours to
the mortuary, for that is your law". PW.1 believed that PW.5
heard what the accused said, for he
was only about 100 yards away
from them. PW.5 denied, however, that she heard the accused insulting
her as described by PW.1 She
said she did not even see the accused on
that day. She conceded, however, that her hearing and eye sight were
no longer very good
because of her old age. Although she was shocked
that he had stabbed her daughter-in-law (the deceased) to death, PW.5
assured
the court that the accused was the most respectful and peace
loving of her five (5) sons. It was, therefore, unthinkable that he
could have insulted

7

her. That
the accused was a peaceful person was also confirmed by PW.7, the
headman in the village.

The
evidence of PW.1 was, however, supported by that of fourteen (14)
years old PW.3, Seabata Ramalebo, who told the court that
at about
noon on the day in question he and two other boys were playing next
to PV.5's home when they heard a scream coming from
the direction of
the deceased's house which was out of view. They ran in the direction
from where the scream came. When they came
within the view of the
deceased's house, PW.3 saw PW.1 running towards PW.5 who was at her
field. As she screamed and ran to PW.5,
PW.1 was saying : "Malulu,
I have seen a cruel thing. My maternal uncle Rabotoko has stabbed my
maternal aunt Moselantja with
a knife." At about the same time
PW.3 noticed the accused walking away in the direction from the
deceased's house. He was
carrying a blanket on his shoulder, a stick
in his hand and walking fast in the direction towards Au-Jong
village. When accused
passed above PW.3's parental home, he called at
PW.5 and told her to go and take her daughter-in-law to the mortuary.
PW.3 did
not, however, hear the accused uttering any insults to PW.5.
He went to deceased's place and found her lying prostrate in a pool
of blood in the house. He could see that the deceased had an injury
below her left armpit. The deceased was still breathing and
from that
PW.3 concluded that she was still alive. PW.1 and PW.5 arrived while
he was still there. He, however, got frightened
by the sight of the
deceased's injury and left.

P.W.2,
Sebolelo Mots'ets'e, the daughter of accused's elder brother, Ntai,
also confirmed that on Sunday the 17th April, 1983 she
was at her
home at Au-Jong's when she noticed PW.1 running to PW.5 in the field.
She was screaming and saying her maternal uncle
was killing the wife
of her maternal uncle with a knife. She reported that to her father,
Ntai. Soon after she had seen PW.1 running
to PW.5, PW.2 noticed the
accused passing next to her home. He was carrying a stick and going
in the direction from the deceased's
house. As accused passed next to
her home, PW.2 heard him

8

saying:
"I have cut someone "khutsana". She did not know what
the accused meant by those words. Shortly after, PW.5
came to her
home and made a report to Ntai. PW.5 and Ntai then left together for
the deceased's place. PW.2 herself did not go
to the deceased's place
but later learned that the deceased had passed away.

The
accused denied the evidence of PW.1 and PW.3 that he had insulted or
talked to PW.5 on that day, I must say I also find it improbable
that
the accused insulted or talked to PW.5, his own mother, in the manner
described by PW.1 and PW.3. I find no convincing reason
or motive why
he should have done so. This was, in all probabilities, an
exaggeration on the part of PW.1 and PW.3. I am prepared,
therefore,
to accept the accused's version that he never did.

PW.1 and
PW.5 confirmed the evidence of PW.3 that when they came to her house,
the deceased was lying in a pool of blood on the
floor in her house.
There were no blood stains outside the house. According to PW.1, the
deceased was lying on her baby. This was,
however, denied by PW.5 who
said the baby was crawling on the door way from where she picked and
carried it on her back. The baby
was later taken from her by
'Mabereng, her daughter, who arrived soon after she (PW.5) and PW.1
had come to deceased's place. PW.5
said when she saw the deceased
lying in a pool of blood, she got frightened and left the house
screaming. She went to call her
eldest son, Ntai, while PW.1 and
'Mabereng went to look for the deceased's husband at a place called
Taung.

According
to PW.5, she did not actually reach the home of Ntai. She stood next
to the home of one Sekola, in the village, from where
she called Ntai
and told him to hurry to the deceased's place. PW.5, therefore,
denied the evidence of PW.2 that she actually came
to Ntai's home and
made a report as a result of which Ntai left with her for the
deceased's place,

9

The
evidence of PW.2 that PW.5 did come to the home of and reported to
Ntai with whom she went to deceased's home was, however,
confirmed by
PW.4, Pakalitha Lerata, who told the court that at about 10.00 a.m.
on Sunday, the 17th April, 1983, he was visiting
Ntai when the
accused passed next to Ntai's place. He heard the accused talking to
himself saying he had cut a person "khutsana"
and the
relatives should go and take that person to the mortuary. He ,too
,did not know what the accused meant by the words "he
had cut a
person "khutsana". Neither he nor Ntai replied to what the
accused said.

After the
accused had passed, PW.5 came to Ntai's house and made a report. She
then left with Ntai for the deceased's home. Ntai
himself confirmed
the evidence of PW.2 and PW.4 on this point.

In my
view, PW,5 was probably mistaken when she said she had not actually
reached Ntai's home. I am prepared, therefore, to accept
the evidence
of PW.2 supported by PW.4 and Ntai himself that she did.

PW.1
confirmed the evidence of PW.5 that after 'Mabereng had come to
deceased's house, she went with her to look for the deceased's
husband, Molikeng, at Taung. On the way she felt tired and remained
behind due to her advanced stage of pregnancy. She was not
present,
therefore, when 'Mabereng found and made a report to the deceased's
husband. 'Mabereng and the deceased's husband later
found PW.1 on the
way when she joined them back to the deceased's house. This was
confirmed by PW.6, Molikeng Mots'ets'e.

According
to the evidence of PW.6, he owed an amount of M2 to a certain woman
by the name of 'Masekoriki Sekoala at Taung. On the
morning of
Sunday, the 17th April, 1983, he was taking the M2 to 'Masekoriki
Sekoala. He was going in the company of his two nephews,Mokhoro
and
Sanki. On their way to Taung, they called at a drinking house in one
of the villages where they found the accused. They asked
for beer but
were told that it was finished. PW.6 then gave 50c to the accused to
buy himself beer where he

10

could
find it in the village. He and his nephews then conti­nued on
their way to Taung. PW.6 denied that when they called at
the house
where they found the accused, they were after the accused whom they
wanted to assault.

I think
it is clear from the evidence that at the relevant time PW.6 had not
been confronted with the accused following his alleged
misunderstanding between the accused and the deceased,his wife. The
two brothers were in all probabilities not in the best of terms.
It
seems to me unlikely, therefore, that at the time PW.6 could have
been so well disposed towards the accused as to give him 50c
with
which to buy himself beer in the village. That being so, the
accused's story that PW.6 and his two nephews wanted to assault
him
on his way to the police post and the offer for 50c to the accused
was just a pretext is more sensible and I am prepared to
accept it as
the truth.

Be that
as it may, PW.6 went on to tell the court that he and his nephews
eventually found 'Masekoriki Sekoala and gave her the
M2.00. They
then looked for and found beer in the village. While they were
drinking, 'Mabereng came and made a report about what
had happened to
the deceased. They immediately hurried back home. At home PW.6 found
the deceased lying prostrate in a pool of
blood on the floor in her
house. She was covered with a blanket, presumably dead. He uncovered
the deceased and found that she
had sustained a bleeding wound on the
chest between her breasts. There was another wound behind her left
shoulder blade. He did
not notice any blood stains on the forecourt
of the house.

After
PW.5, who was still at the scene, had given him an explanation, PW.6
and his two nephews went to report to his elder brother,
Ntai. Ntai ,
however, showed no sympathy and told them to leave his place. When
they did not leave the place, Ntai fired a shot
at PW.6 but missed.
It was then that Ntai was assaulted with sticks by PW.6's nephews.

In his
evidence, Ntai denied to have shown no

11

sympathy
for what had happened to the deceased. According to him when they
arrived at his house, PW.6 and his two nephews told him
to produce
the accused. When he could not, they attacked him with sticks and
PW.6 was the first to hit him a blow on the head.
He had to use a
firearm to scare them off.

P.W.6
told the court that after the scuffle with Ntai, he and his nephews
returned to the deceased's house. Later the police arrived
and the
body of the deceased was subsequently conveyed to the mortuary at
Mafeteng Government Hospital. He accompanied the body
which sustained
no additional injuries on the way to the mortuary. He identified the
body as that of his wife, the deceased, before
the medical officer
who performed the postmortem examination.

PW.9, Sgt
Moseli, confirmed that, at about 4.00p.m. on 17th April, 1933 and
following a certain report, he proceeded to Thabana-Tsooana
where he
found a dead body of a woman in a house. The body was identified to
him as that of the deceased. He inspected the body
and found that it
had sustained an open wound between the breasts and another one below
the armpit. He could not notice anything
of particular interest
outside the house. He subsequently had the body conveyed to the
mortuary at Mafeteng but on the following
day, i.e. not on the 17th
April, 1983, due to lack of transport. He confirmed the evidence of
PW.6 that whilst it was being transported
to the mortuary, the body
sustained no additional injuries.

Dr. Van
Lugt's deposition which was admitted in evidence disclosed that he
was the medical doctor who, on 18th April, 1983, performed
a post
mortem examination on the body of the deceased. The body was
identified before him by PW.6 and another. His findings were
that the
deceased who was about 34 weeks pregnant had sustained two stab
wounds, one on the chest and another on the ribs. The
second wound
penetrated the ribs into the chest cavity and, in his opinion caused
the death of the deceased,

12

Considering
the evidence as a whole, there can be no doubt in my view, that the
deceased died as a result of injuries inflicted
upon her by the
accused. The only question that arises for determination by this
court is whether or not when he so inflicted the
fatal injuries on
the deceased, the accused had the requisite subjective intention to
kill.

It was
contented on his behalf that when he stabbed the deceased, the
accused acted in self-defence. This was based on the accused's
story
that before he stabbed her, the deceased had attacked and injured him
with a pair of shearing scissors outside her house.
For reasons
already explained, I have found the accused's story unconvincing and
accepted as the truth the evidence of PW.1 that
the accused had in
fact attacked the deceased inside the house in the manner she
described. That granted, there can be no question
of self-defence.

For the
sake of argument, even if it were accepted that the deceased was the
first to attack the accused with a pair of shearing
scissors, I am
not so convinced that the defence of self-defence would avail the
accused, in the circumstances of this case. In
his own testimony the
accused told the court that after she had stabbed him in the palm,
the deceased moved backward. That being
so, the deceased placed the
accused in no imminent danger that would call for self-defence.
However, the accused who was holding
a stick in his hand took out a
knife from his pocket, unclasppe it, went to the deceased and stabbed
her. Surely the accused could
have hit the deceased a blow with the
stick, a less dangerous weapon,that was readily available in his
hand. Moreover, if it were
true that after stabbing him in the palm,
the deceased moved backward, the accused then clearly had the
opportunity to avert whatever
danger was facing him by running away
from that pregnant woman. He did not. Instead the accused went for
the deceased and admittedly
stabbed her twice with his knife.

13

According
to PW.1's evidence, which I have no reason to doubt on the point,
before assaulting the deceased the accused remarked
that he was going
to kill her and PW.1 so that their husbands would remain without
wives. Again, by stabbing the deceased with
a knife in the upper
portion of her body as described by PW.1, the accused was surely
aware that his act was likely to result in
her death. He,
none­theless acted regardless of whether or not death occured.

In the
circumstances, I come to the conclusion that the only reasonable
inference to be drawn is that the answer to the question
whether or
not in assaulting the deceased, as he did, the accused had the
requisite subjective intention to kill must be in the
affirmative. I
accordingly find the accused guilty of murder as charged.

My
assessors agree.

JUDGE

26th
June, 1984.

For the
Crown : Mrs. Bosiu.

For the
Defence: Mr. Nthethe.

14

CRI/T/35/83

EXTENUATING
CIRCUMSTANCES.

There was
evidence that on 16th April, 1983 the accused was attacked by PW.1's
husband (Mokhoro) and others. On the morning of the
following day,
the 17th April, 1983, the accused was on his way to the police
station to report the incident when Mokhoro, Joined
by the deceased's
husband (Molikeng) and Sanki, followed him clearly with the intention
to assault him. For fear of being ambushed
and assaulted by his
pursuers, the accused had to abandon the idea of going to the police
station and return home.

No doubt,
the accused was disturbed by the attitude of Mokhoro and Molikeng so
that when he found their wives alone, the temptation
to revenge
himself was great. That in my view is a factor to be properly taken
Into account in determining whether or not there
are circumstances
which tend to reduce the moral blameworthiness of the accused's act.

I come to
the conclusion, therefore, that extenuat­ing circumstances do
exist in this case and the proper verdict should be
that of guilty of
murder with extenuating circumstances.